Author: Nikita Agarwal, Bhartiya Vidyapeeth deemed university in Delhi
Abstract
Judicial intervention in India often takes the form of judicial activism or judicial overreach. While activism plays a vital role in protecting citizens’ rights and filling legislative gaps, overreach raises concerns of democratic imbalance. This article discusses their distinction, importance, landmark cases, criticisms, and the need for balance in a constitutional democracy.
Introduction
India follows the principle of separation of powers, which divides governance into three branches — Legislature (makes laws), Executive (implements laws), and Judiciary (interprets laws). When the judiciary begins influencing the domains of the other two, it leads to concepts of judicial activism and overreach. Activism is praised for upholding rights, whereas overreach is often criticized. This is important in Indian democracy.
Judicial activism is not merely about deciding cases; it is about transforming society through legal innovation and by filling legislative or administrative gaps. It often emerges in the context of Public Interest Litigations (PILs), where courts allow even third parties (who are not directly affected) to approach the judiciary on behalf of disadvantaged or voiceless groups.
Key Features of Judicial Activism:
Expansion of fundamental rights under Articles 14, 19, and 21.
Interpretation of laws in line with constitutional morality and contemporary needs.
Filling legal and policy vacuums through guidelines or directives.
Judicial monitoring of ongoing government action (e.g., compliance with environmental norms or social welfare schemes).
Legal Maxim
Fiat justitia ruat caelum: Even if the heavens fall, justice must be served.
Separation of powers – An implied principle in the Indian Constitution (Kesavananda Bharati case).
Judicial Activism and it’s Significance
Judicial activism means courts play a proactive role in protecting people’s rights and addressing social or governmental inaction. Public Interest Litigations (PILs) are common tools for this.
Cases of social Activism
Vishaka v. State of Rajasthan (1997)
Supreme Court issued guidelines on sexual harassment at workplaces.
Led to the POSH Act, 2013.
Proof: No prior law existed; Court stepped in to ensure protection.
K.S. Puttaswamy v. Union of India (2017)
Recognized the right to privacy under Article 21 as a fundamental Right . Overturned earlier decisions in Kharak Singh (1962) and M.P. Sharma (1954).
M.C. Mehta v. Union of India (1986) –
Raised awareness of environmental rights under Article 21.
Led to stricter environmental laws and protections.
PUCL v. Union of India (2001)
Ensured implementation of food security programs like Mid-Day Meals.
Upheld Right to Food under Article 21.
Judicial Overreach
Judicial overreach happens when courts intrude into legislative or executive domains, issuing orders that belong to policymakers. This undermines democratic roles and expertise.
While judicial activism is seen as a tool to protect citizens’ rights and uphold constitutional values, overreach is often criticized as the judiciary assuming powers it does not possess. This disrupts the separation of powers, which is a foundational principle in any democracy and part of the basic structure doctrine in India (Kesavananda Bharati v. State of Kerala, 1973).
Key Features of Judicial Overreach:
Judicial lawmaking without constitutional or statutory authority.
Interfering with policy decisions, especially in areas requiring technical expertise or legislative debate.
Staying laws passed by Parliament not for being unconstitutional but based on policy disagreement.
Creating administrative frameworks in areas governed by elected governments.
Case Law
State of Tamil Nadu v. K. Balu (2017)
Supreme Court banned liquor shops near highways.
Seen as interference in state policy matters.
Aadhaar in Puttaswamy Case
Ordered Aadhaar linkage to services before formal legislation.
Raised concerns over privacy and judicial overstep.
Firecracker Ban Case (2020)
Total ban on firecrackers for environmental protection.
Criticized for lack of consultation and ignoring economic impact.
2G Spectrum Case – CPIL v. Union of India (2012)
Court cancelled 122 telecom licenses.
Seen as anti-corruption by some, and economic interference by others.
Global Example of Activism and Overreach
1. USA – Roe v. Wade (1973) & Dobbs v. Jackson (2022)
Roe v. Wade (1973) – Example of Judicial Activism
In this landmark judgment, the U.S. Supreme Court held that a woman’s right to have an abortion was protected under the constitutional right to privacy, derived from the 14th Amendment’s Due Process Clause.
The Court legalized abortion nationwide, stating that:
This case is often cited as an example of judicial activism because the Court:
Created new rights by interpreting existing constitutional provisions in a broader sense.
Intervened in a deeply political and moral issue, which many argued should be decided by legislatures.
Dobbs v. Jackson Women’s Health Organization (2022) – Example of Judicial Overreach (or restraint, depending on view)
Nearly 50 years later, this decision overturned Roe v. Wade, stating that the U.S. The Constitution gives states the authority to regulate abortion and does not grant a right to one.
While some considered this judicial restraint, many others called it judicial overreach, because the Court:
Revoked a long-standing fundamental right, impacting millions.
Disregarded public consensus and existing legal precedent (stare decisis).
Was accused of being influenced by ideological shifts rather than legal reasoning.
UK – Miller v. Prime Minister (2019)
Background:
In 2019, UK Prime Minister Boris Johnson advised the Queen to prorogue (suspend) Parliament for five weeks during a politically sensitive time — just before the Brexit deadline.
Judgment:
The UK Supreme Court ruled that:
This ruling was considered a bold exercise of judicial activism, because:
The Court stepped into a highly political and constitutional crisis.
It challenged executive decisions at the highest level.
Critics argued it blurred the line between law and politics, potentially undermining the executive’s prerogative powers.
Supporters saw the decision as defending parliamentary sovereignty, while critics saw it as the judiciary interfering in political discretion.
Recent Developments in India
1. Farm Laws (2021)
The Parliament passed three controversial farm laws in 2020, triggering massive protests by farmers.
In 2021, the Supreme Court stayed the implementation of these laws and formed a four-member expert committee to examine the issue.
Criticism: Many legal scholars argued that the judiciary interfered in the legislative domain — a function reserved for elected representatives.
Nature: Judicial Overreach (according to critics), because staying a law passed by Parliament was considered beyond the scope of judicial review in such a context.
2. Pegasus Spyware Case
Allegations surfaced that the Indian government used Pegasus spyware to monitor journalists, activists, and opposition leaders.
The Supreme Court ordered an independent investigation into the matter, stating that citizen privacy must be protected under Article 21.
Appreciation: The Court was praised for standing up for constitutional rights and government accountability.
Nature: Judicial Activism – stepping in when executive silence raised fundamental rights concerns.
3. COVID-19 Pandemic Response
The judiciary took several actions During pandemic :
Ordered improvements in oxygen supply chains
Directed the government on vaccine distribution
Protected the rights of migrant workers
Public Response: Some viewed it as life-saving activism, while others saw it as overreach, arguing that policy decisions should remain with public health experts and the executive.
Role of Public and Media
In the age of 24×7 news coverage and social media, public opinion can influence judicial decisions, especially in high-profile cases.
Media trials may lead to pressure on courts to act faster or take populist decisions, jeopardizing impartiality.
Example: Social media campaigns and prime time debates often demand “instant justice” or shape narratives before legal procedures are completed.
Impact:
Public engagement enhances transparency, but excessive influence may risk undermining judicial independence.
Why There is a Need for Balance
A healthy democracy requires mutual respect and separation of powers among the three organs of government. Judicial activism is a vital check on legislative or executive failure. However, excessive activism may breach constitutional limits.
Notable Warnings:
Justice Ruma Pal: “Judicial overreach is a real threat to constitutional balance.”
“Judges should not try to run the government,” said Justice Markandey Katju.
How to Maintain Balance Between Judicial Activism and Overreach
1. Judicial Restraint
Judges must act within constitutional boundaries and avoid stepping into areas where the Constitution empowers the legislature or executive.
E.g., Not creating new laws, but interpreting existing ones.
2. Awareness & Training of Judges
Judges, especially at the lower judiciary level, should be trained to distinguish between:
Upholding fundamental rights, and
Taking policy decisions
Regular judicial academies and constitutional law workshops can help.
3. Strong Legislative Action
Parliament must be proactive in addressing public concerns through lawmaking.
If laws are made on time, there is less need for courts to step in through PILs or directives.
4. Use of Human Rights & Law Commissions
Institutions like the National Human Rights Commission (NHRC) and Law Commission can resolve sensitive policy issues more appropriately than courts.
They offer a mix of legal understanding and policy expertise.
5. Healthy Inter-branch Communication
Coordination and respect between judiciary, executive, and legislature is essential.
Open communication avoids unnecessary friction and ensures democratic functioning.
Conclusion
Judicial activism is essential for safeguarding rights, but judicial overreach can disrupt democratic governance. A balance must be maintained, where courts act as guardians of the Constitution without assuming powers of legislation or administration. Indian democracy thrives best when all three branches function within their limits.
FAQS
Q1: Is judicial activism unconstitutional?
No. It is supported by Articles 32 and 226, allowing courts to protect fundamental rights.
Q2: Why is judicial overreach criticized?
It undermines the separation of powers and may lack accountability.
Q3: Can courts make laws?
No, but they can interpret laws and issue guidelines in absence of legislation (e.g., Vishaka Guidelines).
Q4: What is a recent example of overreach?
The Supreme Court’s involvement in firecracker bans and farm laws is frequently argued to be overreaching.
Q5: How to prevent overreach?
Judicial restraint, proper legislation, and inter-branch dialogue are key methods.
